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No. 11-3152
on behalf of himself and all others similarly situated,
On Appeal from the United States District Court
for the District of Delaware
(Civ. No. 1-10-cv-00861)
District Judge: Hon. Sue L. Robinson
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 12, 2012
Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, and
JONES, District Judge. *
(Opinion filed: July 24, 2012)
McKEE, Chief Judge.
Robert G. Baker filed a putative class action complaint against Hartford
Underwriters Insurance Company seeking a declaratory judgment that Hartford violated
21 Del. C. 2118 and 2118B. Section 2118 requires that all automobile owners have
automobile insurance with certain minimum coverage and section 2118B describes the

The Hon. C. Darnell Jones, II, United States District Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.

insurers obligations regarding the processing and payments of insurance benefits,

respectively. The complaint also asserted claims of bad faith breach of insurance
contract, breach of the covenant of good faith and fair dealing, and tortious interference
with contract. Baker, who has an automobile insurance policy with Hartford, which
contains Personal Injury Protection (PIP) coverage, alleged that claims for medical
expenses and other benefits under Hartfords PIP coverage were arbitrarily and
systematically denied, not paid in full or were paid late by Hartford and that Hartford has
a regular business practice of denying claims without reasonable basis or justification.
Hartford filed a motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6),
or, in the alternative, for a more definitive statement. The district court granted the
motion to dismiss, without leave to amend, in a Memorandum Order. Baker v. Hartford
Underwriters Ins. Co., 2011 WL 2709236 (D. Del. July 12, 2011). It found that Baker
lacked standing because the complaint fails to state facts to support a claim that an
actual injury has occurred to satisfy the first prong of the injury in fact test. Id. at *2.
The district court explained:
The complaint provides an example of [Harfords] adjustment
of reimbursement rates on [Bakers] medical bills, as follows:
[A] charge from Dynamic Therapy Services, LLC for
services performed on May 6, 2010 was reduced from $55.00
to $49.50 for a total of $5.50 in damages. However, the
complaint fails to indicate that [Baker] has actually paid any
amount out-of-pocket, $5.50 or otherwise. [Baker] states that
he has submitted bills from [DTS] which have not been paid,
and remain unpaid. The complaint also states that [Baker]
has received notices regarding outstanding balances on his
medical bills; there is no indication, however, that [Baker] has
been billed for them, or that he has paid those balances.

Id. (citations omitted) (emphasis in original).

Baker has appealed the district courts dismissal of his complaint, contending that
the dismissal was error. We disagree. 1
The district court thoroughly and carefully explained why Bakers complaint failed
to allege that he suffered an injury in fact sufficient to establish standing. 2 We can add
nothing to that explanation. Accordingly, we will affirm the district court substantially
for the reasons set forth in the district courts Memorandum Order.
One matter remains. Baker argues that the district court erred by dismissing the
complaint without providing him the opportunity to amend the complaint. We again
disagree. 3 To the extent that Baker requested leave to amend his complaint, the
request is obscurely situated in a footnote in his memorandum of law in opposition to
Hartfords motion to dismiss. The footnote reads:
To the extent the Court finds that additional facts are
necessary to support the Complaint, Plaintiff is willing to
amend the Complaint and add copies of the Explanation of
Benefits Forms, a copy of the providers statement showing
the amount of unpaid bills and any other information that the
Court finds necessary.

We exercise plenary review over a decision granting a motion to dismiss. Jones v. ABN
AMRO Mort. Group, Inc., 606 F.3d 119, 123 (3d Cir. 2010).

It is a fundamental principle of law that a plaintiff must demonstrate injury to himself

by the parties whom he sues before that plaintiff can successfully state a cause of action.
Weiner v. Bank of King of Prussia, 358 F. Supp. 684, 690 (E.D. Pa. 1973). A potential
class representative must demonstrate individual standing vis-as -vis (sic) the defendant;
he cannot acquire such standing merely by virtue of bringing a class action. Fallick v.
Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998).

We review a decision denying leave to amend under an abuse of discretion standard.

Jones v. ABN AMRO Mort. Group, Inc., 606 F.3d at 123.

Bakers Memorandum of Law in Opposition to the Motion to Dismiss, at 9 n.5 (App.

However, Baker did not submit a draft amended complaint to the district court to
allow the court to determine whether amendment would be futile. That failure is fatal to
a request for leave to amend and a district court need not worry about amendment
when the plaintiff does not properly request it. Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007) (citations omitted).
In addition, in the district court, Baker failed to offer any facts which, if pled,
would have cured the defects in his complaint. He did not inform the district court that
he would plead in an amended complaint that he personally paid the unpaid balances of
his medical providers bills or that he was being sued by the medical providers for the
unpaid balances of those bills. Thus, Bakers attempt to fashion a class action here is
completely without merit.
For all of these reasons, the district court did not abuse its discretion in denying
Baker leave to amend his complaint.